One of the first questions clients ask us at Otrebski Attorneys is, “If we divorce, who pays the legal costs?” It is a fair concern. A divorce already carries an emotional toll, and the prospect of two sets of attorney fees can feel overwhelming.
The short answer in South African law is that each spouse generally pays their own legal costs in a divorce. There is. No automatic rule. A divorce court has a wide discretion to order one party to contribute to, or even cover, the other party’s costs. How that discretion is exercised depends on the facts of each matter.
This page explains the legal framework in plain terms, sets out when costs orders are made, and distinguishes legal costs from the division of your joint estate. It is general information, not legal advice. For guidance on your specific situation, consult our Family Law Department at Otrebski Attorneys in Sandton.
The Starting Rule: Each Party Bears Its Own Costs
In South African divorce practice, the default position is that each spouse is responsible for their own divorce attorney costs and own client costs. This means you pay your lawyer, and your spouse pays theirs, regardless of who issued the summons.
This starting point is a practical one. Divorce is rarely a dispute with a single “winner” and “loser”. Issues such as care of the children, maintenance, and the division of property in family law matters are usually negotiated, and the court is reluctant to penalise a party simply for asserting a bona fide claim.
For this reason, in many undefended or consent divorces, the court makes no order as to costs. Each party walks away with their own account.
The Court’s Discretion Under the Divorce Act
Section 10 of the Divorce Act 70 of 1979 empowers the court to make such order as to costs as it may deem just. That discretion is wide, but it is not unfettered. It must be exercised judicially and upon sound principles.
The general principle drawn from our case law is that costs should follow the event, meaning the successful party is usually entitled to their costs. In a contested divorce, this often translates to party-and-party costs, which are the reasonable costs necessarily incurred in pursuing or defending the action, taxed by the taxing master if the parties cannot agree.
- The overall success of each party;
- The conduct of the parties before and during the trial;
- Whether a party raised frivolous or unfounded allegations;
- Whether an offer of settlement was unreasonably refused;
- The respective financial means of the spouses.
In family matters. Courts frequently depart from the costs-follow-the-event rule. A judge may make no order as to costs, or may order only a portion of the costs, so as not to deplete a maintenance sum that is meant to support a spouse or children.
Rule 43: Interim Contribution to a Spouse’s Costs
A common and important application is the Rule 43 procedure of the Uniform Rules of Court. Rule 43 allows a spouse (often the non-working or lower-earning spouse) to apply for interim relief pending the finalisation of the divorce, including interim maintenance, care and contact, and a contribution towards legal costs.
The contribution awarded under Rule 43 is not a final costs order. It is an interim advance designed to place the applicant on a similar footing to the other spouse so that they can engage legal representation and properly place their case before the court.
- The applicant’s financial need and earning capacity;
- The respondent’s financial means and standard of living of the family;
- The complexity and anticipated duration of the divorce;
- The reasonableness of the costs already incurred or anticipated.
At Otrebski Attorneys, our Director, Nastasja Otrebski, frequently advises applicants and respondents on Rule 43 contributions, ensuring that the sworn financial disclosures are complete and credible.
Legal Costs Are Not the Same as the Division of Assets
It is essential to distinguish between legal costs and the division of the joint estate. The accrual system, or the terms of your antenuptial contract, governs how your assets and liabilities are split. Legal costs, by contrast, are the fees each party incurs for their attorney, counsel, experts, and court filings.
A spouse who receives a substantial accrual claim is not, by virtue of that share alone, liable for the other spouse’s attorney fees. Equally, a spouse who walks away with little or nothing of the estate may still be ordered to pay their own costs unless the court directs otherwise.
Factors a Court Will Weigh
- Whether the divorce is defended or undefended;
- Whether the parties acted reasonably in attempting settlement;
- The presence of unnecessary litigation conduct, such as delays or unfounded applications;
- Any tender or written settlement offer that bettered the eventual result;
- The needs of any children, whose interests always rank first.
Practical Steps to Contain Your Legal Costs
While you cannot control every aspect of litigation, you can influence the cost trajectory of your matter through deliberate choices.
- Gather financial documents early so that disclosure is complete and credible;
- Consider mediation or a collaborative divorce before issuing summons;
- Respond promptly to your attorney’s requests for instructions;
- Keep emotion out of correspondence, as hostile letters drive up fees;
- Set clear cost expectations with your legal team from the outset.
Frequently Asked Questions
Can one spouse be forced to pay the other’s legal fees?
Yes, but only if the court considers it just on the facts. The default is that each party bears its own costs, and a costs order against one spouse is the exception rather than the rule.
What is the difference between party-and-party and attorney-and-client costs?
Party-and-party costs are the reasonable costs necessarily incurred in the litigation, allowed on the court’s tariff. Attorney-and-client costs include additional work done at a client’s request and are usually only awarded where a contract or serious misconduct justifies it.
Will an uncontested divorce still cost me money?
Yes. Even an uncontested divorce carries attorney fees, sheriff’s fees, and a court filing fee, but these are markedly lower than in a contested matter because the issues are settled by agreement.
Can I claim my costs back if my spouse was unreasonable?
You can ask the court to do so. Unreasonable conduct, such as refusing a sensible settlement offer or raising unfounded allegations, can persuade the court to depart from the default and order costs against that party.
Get help with your divorce. Otrebski Attorneys is a 100% women-led, Level 4 B-BBEE firm based in a single Sandton office. Our Family Law Department, led by Director Nastasja Otrebski, brings patient, plain-spoken guidance to every divorce matter, from uncontested settlements to complex contested trials. Rated five stars across 12 client reviews, we will help you understand your cost exposure and plan a route through your divorce that protects both your finances and your family.
Disclaimer. This article is intended as general information and does not constitute legal advice. The law on costs is fact-specific and develops over time. Please consult our Family Law Department at Otrebski Attorneys for advice tailored to your circumstances.